United States v. Clarke

239 F. App'x 739
Court of Appeals for the Third Circuit·Decided July 12, 2007·No. 06-3124·Unpublished

Opinion

OPINION

SLOVITER, Circuit Judge.

Appellant Brian Clarke pled guilty pursuant to a plea agreement to two offenses, carjacking, in violation of 18 U.S.C. § 2119(2), and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (A) (ii). The plea agreement contained a waiver of appeal except that it reserved Clarke’s right to appeal the sentencing court’s determination of his criminal history category. 1 Clarke concedes that he committed offenses while he was an adolescent that the District Court could properly take into account under the Sentencing Guidelines in setting his sentence. His claim is limited to the argument that the District Court abused its discretion and imposed an unreasonable sentence by its “strict adherence to the Sentencing Guidelines.” Appellant’s Br. at 4.

The Government argues that we do not have jurisdiction over this appeal. We recently rejected the Government’s argument in United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.2007), where we held that we retain subject matter jurisdiction over an appeal by a defendant who has signed an appellate waiver. We stated, however, that “[this Court] will not exercise that jurisdiction to review the merits of [a defendant’s] appeal if we conclude that [defendant] knowingly and voluntarily waived [his] right to appeal unless the result would work a miscarriage of justice.” Id.

Our task, therefore, is to determine whether Clarke knowingly and voluntarily signed the waiver. The plea agreement that Clarke signed states:

Waiver of Appeal and Post-Senteneing Rights

As set forth in Schedule A, this Office and Bryan Clarke waive certain rights to file an appeal, collateral attack, writ or motion after sentencing, including but not limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255.

Schedule A provides, inter alia:

15. Bryan Clarke knows that he has and, except as noted below in this paragraph, voluntarily waives, the right to file any appeal, any collateral attack, or any other writ or motion, including but not limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which challenges the sentence imposed by the sentencing court if that sentence falls within or below the Guidelines range that results from the agreed total Guidelines offense level of 23, plus an additional seven years imprisonment for the violation of 18 U.S.C. 924(c). This Office will not file any appeal, motion or writ which challenges the sentence imposed by the sentencing court if that sentence falls within or above the Guidelines range that results from the agreed total Guidelines offense level of 23, plus an additional seven years imprisonment for the violation of 18 U.S.C. 924(c). The parties reserve any right they may have under 18 U.S.C. § 3742 to appeal the sentencing court’s determination of the criminal history category. The provisions of this paragraph are binding on the parties even if the Court employs a Guidelines analysis different from that situated to herein. Furthermore, if the sentencing court ac *741 cepts a stipulation, both parties waive the right to file an appeal, collateral attack, writ, or motion claiming that the sentencing court erred in doing so.
16. Both parties reserve the right to oppose or move to dismiss any appeal, collateral attack, writ, or motion barred by the preceding paragraph and to file or to oppose any appeal collateral attack, writ or motion not barred by the preceding paragraph.

(emphasis added). App. Ex. C at 8.

The Government contends that although the language of the waiver appears to reserve Clarke’s right to appeal the sentencing court’s determination of his criminal history, Clarke waived his right to appeal because:

At sentencing, the District Court confirmed that Clarke had no quarrel with the Probation Office’s calculation of his Criminal History Category, but rather that he was seeking a downward departure under U.S.S.G. § 4A1.3, arguing that the resulting Criminal History Category over-represented the seriousness of his criminal history and likelihood of recidivism. By expressly agreeing with the PSR’s calculation of his Criminal History Category, Clarke waived any right to challenge the District Court’s determination on appeal.

Gov’t Br. at 27.

Clarke did indeed object to the Criminal History Category. The addendum to the Presentence Report contains an objection by Clark that “the use of [the] juvenile criminal convictions improperly increases [his] Criminal History Category. Consequently, this over-represents the likelihood that, as an adult, Clarke would recidivate.” App. Ex. D at 26. Additionally, Clarke argues that he made a formal objection to the inclusion of his juvenile record in the calculation of his Criminal History Category. Accordingly, Clarke is free to bring an appeal under 18 U.S.C. § 3742, specifically subsections (a)(2) and (a)(4), which he claims are applicable to his case.

With regard to subsection (a)(2) of 18 U.S.C. § 3742, which permits a challenge to a sentence that “was imposed as a result of an incorrect application of the sentencing guidelines,” Clarke argues that “the use of his juvenile convictions to increase his sentence, without due consideration of the provisions of Title 18 U.S.C. § 3553(a) — including facts and circumstances regarding his age and his personal family history at the time of his juvenile offenses — yielded a sentence that was ‘imposed as a result of an incorrect application of the sentencing guidelines.’ ” Appellant’s Reply Br. at 6. Furthermore, Clarke alleges he has a valid appeal under subsection (a)(4), which permits a challenge that the sentence “was imposed for an offense for which there is no sentence guideline and is plainly unreasonable.” 18 U.S.C. § 3742(a)(4). Clarke argues that his sentence was determined by

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United States v. Clarke, 239 F. App'x 739 (3d Cir. 2007).

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